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The Supreme Court and Politics–Especially the current conservative majority’s appropriation of the First Amendment in the service of Republican Party electoral victories

Dan Crawford emailed me this morning with a link to Linda Greenhouse’s op-ed in today’s New York Times, titled “Law and Politics,” and asked me to post about it.  A more apt title for the op-ed, which a headline writer rather than Greenhouse (whose bailiwick is the Supreme Court) titled, would be “The Supreme Court and Politics,” as that is its sole subject.

The piece discusses work by eminent political scientist Robert A. Dahl, who died earlier this month at the age of 98, establishing a particular  theory about the Supreme Court: that, although there is some inevitable lag time, the Supreme Court normally fairly quickly recalibrates to follow sea changes in public opinion.

Here’s how I responded to Dan’s email:

Hi, Dan.  I’m a big fan of Linda Greenhouse, but I disagree with some of what she wrote. I think Dahl’s 1957 article is more out-of-date than she says.  I agree more with Jack Balkin, whom she mentions, and who writes a popular law blog called Balkinization.  I think that the current Court majority will remain deeply steeped in the specifics of the Reagan-era conservative legal movement, which involves some really weird doctrines that they claim as constitutional ones, some of which the public is clueless about and that therefore these justices pay no price in public opinion for.  I’ve alluded to this on AB from time to time, but have wanted for a while to write in more depth about it.

There’s one really big “sleeper” case, especially, that was argued at the Court recently and that I mentioned, but that I want to write in more depth about.  I do think that if the majority rules the way they clearly want to in that case, there will be more publicity about it than they expect, and more backlash.  Not as much as with Citizens United or even as much as with the Voting Rights Act case last year, but they expect almost none and I think they’ll be surprised that they’re wrong about that.

But the bottom line is that I don’t think this crowd cares that much about public opinion.  They’d prefer, of course, that no one notice what they’re doing, but I doubt that fear of public backlash will stop what amounts to a Reagan-era legislative agenda that these people clearly are hell-bent on forcing into law, much of it inoculated against reversal by Congress (a la the Ledbetter case, which Greenhouse mentions) by claiming some constitutional ground for the ruling. Ledbetter and many of their other pro-business and pro-state-and-local-government procedural/jurisdictional-rules Supreme Court opinions–interpretations-cum-rewritings of procedural or substantive statutes, some overtly fabricated by the Court in pretty clear violation of the Constitution’s Articles I and II (separation of powers)–can eventually be reversed by a Congress not in thrall to the Koch brothers. (Congress reversed Ledbetter before Citizens United.)  But when the Court couches its rulings as constitutional dictate, Congress can’t reverse them.

But there are some aspects that are peculiar to this particular majority, and that has received very little attention.  Always in the past (at least to my knowledge), the Court limited itself in major, sweeping rulings to issues raised by the parties.  This was true, certainly, in the New Deal rulings first striking down New Deal legislation and then reversing itself and upholding most of the legislation.  It also was true in every aspect of the Warren Court era–racial issues, First Amendment issues, criminal defendants’ rights, etc.–and then in the Burger Court era (e.g., Roe v. Wade).  And those cases always were brought not by some manufactured-issue ideologues, as occurs regularly now, but instead by normal-circumstance “cases and controversies,” as the constitutional phrase goes.

What is happening now is an orchestrated dance between rightwing conservative-movement lawyers and groups, and the Reagan, Bush I and Bush II justices, in which some really bizarre constitutional and statutory-interpretation arguments are made, and then adopted by the Court, dramatically but very often quietly rewriting parts of the Constitution (e.g., the Supremacy Clause, flipping it upside-down when applied to state judicial branches but flipping it back to serve conservative-movement dogma in other contexts) and procedural and substantive statutes. In fact, a hallmark of this crowd is the casual flipping back-and-forth as convenient–a hallmark especially of Scalia and Alito.

Beverly

The “sleeper” case I referenced is Harris v. Quinn, which was argued to the Court on Jan. 21.  At first blush a labor-law matter under the National Labor Relations Act (a.k.a., “Taft-Hartley”), but apparently a majority of the Court plans to turn it into a First Amendment case. At oral argument, Samuel Alito claimed that public-employee unions, by their very existence, violate the First Amendment speech and assembly rights of workers who don’t belong to the union, and Anthony Kennedy suggested that the longtime labor-law rule known as a “fair share” provision in public-employee union contracts, allowed by Taft-Hartley and previous Supreme Court opinions, violates the First Amendment’s “petition” clause (right to petition the government for a redress of grievances).  Something about some anti-union public employees who are concerned about “the size of government” and who therefore want to be fired or have their wages and pensions reduced.

Seriously.

An op-ed in the Washington Post by labor and employment lawyer Moshe Marvit, published the day before the argument in the case, summarizes the background:

On Tuesday the Supreme Court will hear arguments in Harris v. Quinn, a case that has been referred to as a “sleeper” by both conservatives and liberals and may turn out to be the most significant labor law case in decades. It was brought by the National Right to Work Legal Defense Foundation (NRTW), whose mission is to use “strategic litigation” to “eliminate coercive union power and compulsory unionism abuses,”in this case on behalf of several personal assistants who provide in-home services to persons with disabilities under Illinois’s Medicaid program.

NRTW argues that these home-care workers are not public employees and therefore should not have the right to exclusive representation by a union, nor should they have to pay either membership dues or a “fair share” fee for the union they have chosen to represent them. (“Exclusive representation” means that all workers are covered by a union so long as the majority have voted for it. A “fair share” provision requires workers who are not union members to pay a proportionate share of the costs incurred by the union to support the workforce in the collective bargaining process. Unions are not allowed to use “fair share” fees on any political activities.)

But that was then.  Then, being before the oral argument.  Now, it’s a First Amendment case concerning forced speech about the role of government, and the right of public employees to petition their government employer for a redress of the grievance of big government.  Public employees who are concerned about the size of government should be entitled to resign, or forego a pay or pension increase and demand a larger employee contribution for healthcare insurance.

Or at least they should be allowed to accept those benefits without contributing to the union’s expenses to obtain them for the workers.

This is as opposed to, say, shareholders–some of them via their pension funds, some of them through mutual funds, and almost all of them entirely unwittingly–who care every bit as much about the size of government as do those anti-union public employees.  And who the Supreme Court has said must be forced to support the political views of the CEOs who use corporate funds to secretly contribute to Republican PACs.  Especially views about the size of government.  Each corporation is a person–specifically, the person who is its CEO.  At least if the CEO is a Republican.

States, too, it now turns out, also are people, entitled to Fourteenth Amendment equal protection of the law, a constitutional provision heretofore accorded to individuals as against a state’s denial of equal protection of the law.  Who knew?  Well, whatever.

No, Harris was not about the First Amendment until the Republican justices decided (apparently) that it will be.  As the articles about this case that I’ve linked to above show, this is in contrast to a case called Garcetti v. Ceballos in early 2006.  Wikipedia explains:

Garcetti v. Ceballos, 547 U.S. 410 (2006), is a decision by the Supreme Court of the United States involving the First Amendment free speech protections for government employees. The plaintiff in the case was a district attorney who claimed that he had been passed up for a promotion for criticizing the legitimacy of a warrant. The Court ruled, in a 5-4 decision, that because his statements were made pursuant to his position as a public employee, rather than as a private citizen, his speech had no First Amendment protection.

The case was by no means incidentally Samuel Alito’s, um, very first case as a Supreme Court justice.  He insisted.  Again, Wikipedia explains:

The Supreme Court reversed the Ninth Circuit, ruling in a 5-4 decision delivered by Justice Anthony Kennedy that the First Amendment does not prevent employees from being disciplined for expressions they make pursuant to their professional duties. The case had been reargued following the retirement of Justice Sandra Day O’Connor, as the decision was tied without her; her successor, Justice Samuel Alito, then broke the tie.

The four dissenting justices, in three dissents written by Justices John Paul Stevens, David Souter, and Stephen Breyer, took issue with the majority’s firm line against the First Amendment ever applying to speech made within the scope of public employment, arguing instead that the government’s stronger interest in this context could be accommodated by the ordinary balancing test.

Actually, what happened is that the original 5-4 opinion was issued just before the Senate voted to confirm Alito as O’connor’s replace.  Technically, the opinion had not yet become final when Altio was sworn in, because the short time allotted the losing party to file a petition for reconsideration had not expired.  The Court had not granted a petition for reconsideration in the preceding four decades or so.  But Alito supplied the fifth vote to rehear the case in order to reverse the result.

Kennedy wrote the opinion for the new majority.  Wikipedia summarizes it:

The Court wrote that its “precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.” Instead, public employees are not speaking as citizens when they are speaking to fulfill a responsibility of their job.

Unless, of course, the job responsibility at issue is compliance with a labor agreement negotiated between a union and the employer.  Or if the statement at issue concerns something as unimportant as the legitimacy of a warrant rather than the all-important matter of the size of government.

Also in today’s New York Times, along with Greenhouse’s op-ed, is an article by Adam Liptak, the Times’ current Supreme Court correspondent, about a case to be argued at the Court on Monday that, as Liptak notes albeit obliquely, promises to illustrate one of the hallmarks of this Court.  A Court majority that itself routinely, casually rewrites procedural and substantive statutes and allows the lower federal courts to do the same, for decades, until ExxonMobil or Sprint petitions the Supreme Court about it, takes umbrage when it is the executive branch rather than the judicial branch that encroaches upon the Congress’s constitutional prerogatives. But only when the executive branch is headed by a Democrat.

A Court that has so brazenly and aggressively precluded access to federal court, and most certainly to itself, as a mechanism to petition the government for a redress of grievances–effectuating a key goal of the conservative movement from which these five justices all hail–is about to concern itself with the right of public employees to petition for small government by refusing to pay for their union representation.

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